March 10, 2020
Edward Boling
Associate Director for the National Environmental Policy Act
Council on Environmental Quality
730 Jackson Place, N.W.
Washington, DC 20503
Subject: Comments on “Update to the Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act (NEPA)” {Docket No. CEQ-2019-0003}
Dear Mr. Boling:
I am writing to you on behalf of over 1,700 members of the Coalition to Protect America’s National Parks (Coalition), a non-profit organization composed of retired, former, or current employees of the National Park Service. The Coalition studies, educates, speaks, and acts for the preservation of America’s National Park System. As a group we collectively represent nearly 40,000 years of experience managing and protecting America’s most precious and important natural and historic resources. Among our members are former NPS directors, regional directors, superintendents, environmental and resource specialists, NEPA practitioners, park rangers, maintenance and administrative staff, and a full array of other former employees, volunteers, and supporters.
On behalf of our membership, we offer the following comments for your consideration:
I. INTRODUCTION
As described in the “Summary” section of the preamble (see Federal Register (FR) p. 1684), “[the] proposed rule would modernize and clarify the regulations to facilitate more efficient, effective, and timely NEPA reviews by Federal agencies in connection with proposals for agency action.” Our members, many of whom are retired NPS employees, can understand and could support such a legitimate goal, as many of us during our careers participated in NEPA reviews that dragged on too long, became too complicated, required too much staff time, and cost too much money to complete. However, these were typically the exception, not the rule.
Our overarching concern with the proposed rule is that CEQ has gone far beyond practical measures that would improve the clarity and efficiency of the NEPA process; and entered the realm of unreasonable requirements that would erode public confidence in the Federal Government’s commitment to implementing NEPA and undermine the goals of the Act itself.
Current NEPA procedures have long provided a critical mechanism for ensuring that the Park Service fulfills its mission to “conserve [parks] . . . unimpaired for the enjoyment of future generations.”
During the past 50 years, important factors in making good decisions that protect parks has been robust public participation encouraged under the current NEPA process and effective analysis of potential impacts to park resources and values.
The most significant shortcomings with the proposed rule are that: 1) it will undermine public participation in the NEPA process by making public comment opportunities “flexible,” which essentially means “at the discretion of the agency” or “optional,” instead of “required”; and 2) it will weaken and, in some cases, eliminate substantive aspects of the current NEPA process, such as the analysis of indirect and cumulative effects and the thoughtful consideration (i.e., comparison of impacts) of a range of reasonable action alternatives (particularly in EAs).
To add further to our concerns, the rule would impose very specific “presumptive” page and time limits on the preparation of NEPA documents. The proposed limits are much shorter than what CEQ reports in the Preamble as the average preparation time and page length of EAs and EISs. The predictable effect of these arbitrary and capricious limits will be that:
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- agencies will be under pressure to cut corners in the preparation of NEPA documents;
- the quality of the environmental analysis will suffer;
- agencies will inevitably shorten the length of or eliminate public comment opportunities in order to meet these unrealistic “presumptive” targets; and
- provisions to narrow the scope of NEPA documents will limit the range of alternatives under consideration and lead to more “pre-decisional” actions in violation of NEPA, leading to more not less litigation and project delays and associated costs.
While CEQ’s proposed changes to its NEPA regulations may be perceived as “beneficial” to developers, utility companies, and the oil and gas industry, the proposed rule will certainly hinder deliberation and public involvement in agency decisions. Furthermore, eliminating analysis of indirect and cumulative effects and unduly constraining the range of alternatives considered, particularly in EAs, will make it more difficult for an agency’s NEPA document to withstand judicial review to ensure that the agency took a “hard look” at the environmental impacts of an action. See Natural Resources Defense Council v. Morton, 458 F.2d 827, 838 (D.C. Cir. 1972).
These shortcomings will put the continued protection of the Nation’s natural and cultural resources at risk. This is inconsistent with NEPA’s most fundamental goal, which is to ensure deliberation and public involvement in agency decisions to improve the federal government’s protection of human welfare and the environment. In our experience, encouraging, not limiting, robust public participation in the NEPA process, considering a range of reasonable alternatives, and taking a legitimate “hard look” at potential impacts are far more beneficial and important to making good management decisions than anything in CEQ’s plan to “streamline” the NEPA process.
The reality is that nearly every provision of the existing NEPA regulations has been litigated and refined through the judicial review process. Many of the underlying principles in the current regulations are derived from established case law that interprets the statute (i.e., NEPA) itself. CEQ is charged with promulgating regulations to implement the Act; however, CEQ cannot change the established principles of the statute itself. There is no doubt that if the proposed rule is adopted there will be so much litigation and confusion that any benefits for improved timing and efficiency will be canceled; and decisions will be mired in controversy and delay. In short, the proposed rule is unlikely to make the NEPA process faster or decisions better any time soon.
II. OVERVIEW
The purpose of the National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq. is:
To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere (emphasis added) and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality. (42 U.S.C. 4321 Sec 2)
As additional context, among the important goals of the Act stated in 42 U.S.C. 4331, Sec 101(b), are to:
(1) fulfill the responsibilities of each generation as trustee of the environment for succeeding generations; and
(4) preserve important historic, cultural, and natural aspects of our national heritage, and maintain wherever possible, an environment which supports diversity and variety of individual choice.”
The Notice of Public Rulemaking (proposed rule) proposes sweeping changes to the entirety of regulations implementing NEPA across all federal agencies, including the National Park Service (NPS). Over the past 50 years national park managers, including many of our members, have utilized NEPA for a multitude of projects ranging from infrastructure improvement, wildlife management, facility development, and general management planning. Among other things, the current NEPA process ensures that there is science-based analysis, evaluation of a range of reasonable alternatives and their impacts, and structured opportunities for public involvement. This process has proven to be instrumental to informing decision makers as well as the public of what consequences may occur through implementation of alternative actions. Our experience has been that adherence to the process inevitably leads to better planning, meaningful mitigation measures and, ultimately, a better project.
In brief, the current NEPA implementing procedures have been battle-tested through litigation and are proven to be a critical mechanism for ensuring that the National Park Service fulfills its statutory mission of protecting park resources and values to “leave them unimpaired for the enjoyment of future generations.” 54 U.S.C. § 100101.
As a national park advocacy group, we contend that there is no more meaningful assemblage of America’s “important historic, cultural, and natural aspects of our national heritage” that are to be conserved “for succeeding generations” than the 419 units (“parks”) within the National Park System. The National Park Service Organic Act of 1916 established the agency’s iconic “conservation mandate”[1] that is the legal foundation for all significant park management decisions. This mandate is remarkably consistent with the goals of NEPA summarized above. The Organic Act sets forth that the purpose of parks is:
To conserve the scenery, natural and historic objects, and wild life; and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations. 54 U.S.C. § 100101.
Furthermore, courts have consistently held that the National Park System’s principal purpose, under the Organic Act, is conservation. E.g., Mich. United Conservation Clubs v. Lujan, 949 F.2d 202, 207 (6th Cir. 1991); Bicycle Trails Council of Marin v. Babbitt, 82 F.3d 1445, 1449 (9th Cir. 1996).
This conservation purpose of national parks is reinforced by provisions in a spectrum of other federal statutes. For example, the Clean Air Act (42 U.S.C. §7401 et seq) provides special air quality and visibility protection to units of the National Park System as either mandatory Class I or Class II areas (§§ 7472 and 7474). The Mineral Leasing Act recognizes the special protected status of parks by authorizing the “Secretary of the Interior or appropriate agency head” to grant gas pipeline rights of way across “all lands owned by the United States except lands in the National Park System.” (30 U.S.C. § 185(b)(1)). And the National Park System provides habitat to over 600 threatened and endangered species[2] protected under the Endangered Species Act of 1973 (16 U.S.C. 1531-1544).
Fifty national park units contain areas designated by Congress as Wilderness that are more rigorously protected under provisions of the Wilderness Act of 1964 (16 U.S.C. 1131-1136). And many parks have “other categories of wilderness” – lands not so designated, but proposed or otherwise eligible for wilderness designation – that are managed as wilderness per NPS policy. All told, over 80 percent of all lands within the National Park System are managed as wilderness.[3]
In addition, the National Park Service administers 44 wild and scenic rivers, including 33 that flow in whole or in part within units of the National Park System, that are afforded special protection under the Wild and Scenic Rivers Act of 1968 (16 USC 1271-1287).[4] NPS also administers 21 national trails, including 3 that are units of the National Park System, and jointly administers two other national trails in cooperation with the Bureau of Land Management (BLM)[5], all of which are afforded special protection under the National Trail System Act of 1968 (16 U.S.C. §§1241-1251).
NEPA, and specifically its purpose “to promote efforts [among federal agencies] which will prevent or eliminate damage to the environment and biosphere” ( 42 USC 4321 Sec 2), sets a very high bar for CEQ to meet in considering the propriety and potential effects of CEQ’s proposed changes to the NEPA implementing regulations. For comparison purposes and to evaluate the effectiveness of the proposed rule in achieving this purpose of NEPA, moving forward in our comments we consider the current CEQ regulations to be the “no action” and the proposed updates to be the “proposed alternative.”
Our experience has been that in order to effectively conserve the resources and values within units (parks) of the National Park System, the NEPA process must be reasonably flexible and adaptable to the magnitude and complexity of the project and to the nature and potential environmental effects to the resources involved. And robust public involvement is an essential ingredient in effective decision making.
In that context, we believe that proposed changes to CEQ’s NEPA implementing regulations will be a significant step backward in accomplishing NEPA’s purpose of “preventing or eliminating damage to the environment.” The proposed rule will render the NEPA environmental impact analysis process, as well as public participation in the process, more superficial and less effective. It will also limit public involvement opportunities. These changes have the clear potential to compromise the level of resources protection established by the many laws that guide stewardship of our parks.
III. EXAMPLES OF SUCCESSFUL NEPA PROCESSES BY NATIONAL PARK SERVICE
We offer the following examples from our experience that demonstrate the significant benefits of the current NEPA regulations that are flexible and adaptable to the size and complexity of the project; and reflect ample opportunities for robust public participation:
1. The first example is the General Management Plan (GMP) and Environmental Impact Statement (EIS) for the Cape Cod National Seashore. The park was created in 1961 almost entirely out of lands that were in private, local government or state ownership. The land acquisition process was extremely contentious and left park managers with an enormous community relations challenge. Superintendents and staff routinely encountered entrenched community bitterness.
Park planners and staff had to build community trust over a number of months during the GMP planning process. While the NEPA scoping component of this process was time consuming, it proved effective in allowing the local communities to not only voice their concerns but also to assist in development of reasonable alternatives. The park held dozens of public meetings and received and replied to thousands of public comments. The scoping process was quite time consuming, and the development of viable alternatives challenging. The issues were so longstanding and heated that the park allowed a one year comment period.
Thanks to NEPA, the result was a General Management Plan (GMP) that has broad acceptance, forestalled numerous threatened lawsuits and has guided the park appropriately now for over 20 years. Under the proposed regulations, with its shortened time and page limits, this plan would never have been successfully implemented.
2. A second example of why the current regulations work is the highly contested Yosemite Merced River Plan and EIS.
This project relied on study of complex regional cumulative influences on the iconic Merced River Valley. To ignore changing cumulative conditions and circumstances in the “reasonably foreseeable future” as called for by the proposed regulations would have led to deficient and ineffective planning that would have harmed the park for decades.
3. Similarly, the analyses of cumulative impacts required by the current regulations, but not in the proposed regulations, was also fundamental to the NPS NEPA and rulemaking process for allowing or eliminating personal water craft (PWCs) in thirteen NPS units.
With valuable public input, parks considered a full range of alternatives including designating areas off limits to PWC’s to establishing speed and buffer limits to protect public safety. In some cases, cumulative impacts to air and water resources were critical to decisions to prohibit two-cycle PWC’s in favor of quieter, less polluting four-cycle engines.
4. Another example of why the current regulations work is at Cape Hatteras National Seashore (Seashore) where – for decades – NPS failed to comply with two executive orders issued during the 1970’s regarding management of off-road vehicle (ORV) use.
When finally forced by litigation to comply with these requirements, NPS relied upon the NEPA process to develop an ORV management plan/EIS. The process was complicated by the lack of relevant existing management plans at the Seashore (e.g., there was no current general management plan or resources management plan), and by a negotiated rulemaking process that ran concurrently with the NEPA process.
Ultimately, NPS was able to complete the EIS, which then served as the basis for the subsequent rulemaking process necessary to codify the selected ORV management regulations and policies. Because of the thoroughness of the planning process under NEPA, which included extensive stakeholder input on a range of reasonable alternatives and multiple public involvement opportunities, the NPS decision withstood subsequent legal challenge.
5. Finally, another example of the benefits of employing the NEPA planning process is the Yellowstone Bison Management Plan/EIS.
This also was a highly controversial and complex project that was impacted by numerous court orders, which among other things, mandated deadlines for completion of the NEPA process. The entire process covered nearly a decade from the time the park issued an initial environmental assessment and was then ordered to complete an EIS. Completion of this process required collaboration among nine cooperating agencies and also included extensive collaboration with regional Indian Tribes. The final approved Plan/FEIS has withstood additional litigation and remains intact as the guiding planning document to manage the iconic Yellowstone bison.
With all of the above as context, we offer the following comments about CEQ’s proposed changes to its NEPA implementing regulations.
IV. COMMENTS ABOUT THE PREAMBLE
1. Section I.B.1. Regulatory History (FR pp. 1685-86)
This section omits important regulatory history. For example, this section fails to note that the cumulative impacts analysis was not invented by the 1978 regulations. In fact, earliest NEPA guidelines issued by CEQ in 1971 and 1973 expressly required the identification and analysis of cumulative and indirect impacts. See 36 Fed. Reg. 7,724 (Apr. 23, 1971); 38 Fed. Reg. 20549 (Aug. 1, 1973). While this section cites several key early cases, it fails to cite early cases that make it clear that the statute requires analysis of cumulative impacts. See Hanly v. Kleindienst, 471 F.2d 823 (2d Cir. 1972).
2. Section I.B.2 CEQ Guidance and Reports (FR pp. 1686-87)
As stated in this section, one of CEQ’s primary responsibilities has been to provide guidance to federal agencies “regarding appropriate implementation of NEPA and the CEQ regulations.” We agree that CEQ’s proper role is to provide sufficient guidance to ensure a reasonable level of consistency and quality in how federal agencies implement NEPA. However, our experience has been that when CEQ guidance is vague or silent on a topic, such as the issue of inviting public comment on environmental assessments (EAs), it results in significant inconsistencies in how federal agencies implement the NEPA process. We believe this current regulatory “update” is an important opportunity for CEQ to address not only the expediency of the process, which now seems to be CEQ’s primary focus, but also a number of shortcomings (typically by omission) in the current NEPA regulations. We will provide specific suggestions about vague or altogether absent guidance in our section-by-section comments below.
The last paragraph of this section of the Preamble discusses “the need to improve agency coordination for infrastructure projects requiring an environmental impact statement (EIS) and permits or other authorizations from multiple agencies” and refers to the “One Federal Decision Framework” under E.O. 13807 as the guidance for addressing the need. The proposed rule would codify aspects of the OFD Framework, which has been in effect since 2017, without conducting any analysis to determine its actual benefits and shortcomings.
While we agree that improved coordination between agencies is a legitimate need, the reality is that the OFD Framework has had mixed results thus far, particularly when major infrastructure or mineral extraction projects are planned adjacent to, or would go under or through, units of the National Park System. The lead federal agency preparing the EIS for this kind of project, often the Bureau of Land Management (BLM), is guided by a development-oriented mission or multiple-use mandate. Unfortunately, we’ve come to understand that BLM and agencies with comparable legal mandates have limited understanding of and appreciation for the Park Service’s conservation goals or the “non-impairment” standard of care that applies to park resources affected by the project.
In recent years we have also seen a rash of EISs for massive infrastructure projects that fundamentally failed to adequately assess potential impacts to adjacent national park resources and values. This predictably has resulted in litigation and eventual remand to the lead agency to redo the EIS, resulting in far longer delays and far more costs than if the lead agency had taken the time to do a proper EIS in the first place.
For example, consider the highly publicized and litigated Atlantic Coast Pipeline project that would transect two units of the National Park System, the Appalachian National Scenic Trail and the Blue Ridge Parkway. The EIS for the project was prepared by the Federal Energy Regulatory Commission (FERC) in order to facilitate issuance of permits and approval of the pipeline developer’s preferred option. As multiple courts have thus far certified, there were numerous shortcomings in FERC’s analysis of likely impacts to park resources, which are protected under the NPS Organic Act regardless of what agency oversees the project.
Regrettably, we see nothing of substance in the One Federal Decision Framework or in the related aspects of the proposed rule that will contribute to more effective cooperation between agencies with fundamentally different missions.
3. Section I.B.3. EIS Timeliness and Page Count Reports (FR pp. 1687-88)
As described in this section, CEQ “conducted reviews and prepared reports on the length of time it takes for agencies to prepare EISs and the length of these documents. [The] reviews found that the process for preparing EISs is taking much longer than CEQ advised, and that the documents are far longer than the CEQ regulations and guidance recommended” (emphasis added). CEQ’s findings (i.e., the data) presented clearly do not support CEQ’s proposal to impose overly ambitious and unreasonable “presumptive” time and page limits on the preparation of EAs and EISs (see §§ 1501.5, 1501.10, and 1502.7). However, CEQ’s findings do, in fact, suggest that it would be more reasonable (and realistic) to “presume” page and time limits 50-100% higher than what CEQ is proposing. As a result, CEQ’s specific proposed presumptive limits appear arbitrary and capricious and without valid justification. We will comment on these concerns more specifically under the respective proposed rule section(s) later in this letter.
4. Section I.C. C. Judicial Review of Agency NEPA Compliance (FR p.1688)
The proposed rule notes the extensive body of case law interpreting NEPA and the current CEQ regulations that has developed over the past 50 years. However, rather than codify this case law, the proposed rule eliminates many key terms and concepts discussed below that the courts have interpreted over the past 50 years. By eliminating these key terms and concepts, and throwing out what has become for the most part a clear and consistent body of law, the proposed rule is likely to lead to decades of more litigation as the courts are forced to interpret new terms and concepts.
5. Section II.B.5. Proposed revisions to Environmental Assessments (§ 1501.5) (FR pp. 1696-97)
Several sentences on p. 1697 concern us. They state: “Consistent with the current CEQ regulations, the proposed rule would not specifically require publication of a draft EA for public review and comment. The proposed CEQ regulations would continue to require that agencies reasonably involve relevant agencies, the applicant, and the public prior to completion of the EA, so that they may provide meaningful input on those subject areas that the agency must consider in preparing the EA.” (Emphasis added to underlined sections.)
We believe that CEQ’s explanation is nonsensical, especially given that elsewhere in the proposed rule (e.g., at §1506.6), soliciting public comment on EAs is not required, but essentially optional and at the discretion of the lead agency. If an agency exercises the combination of proposed discretions to: (1) not publish” a draft EA, and (2) not hold a public comment period, it is literally impossible for the public to “provide meaningful input” on the proposed action. The regulations should be specific enough to ensure a reasonable opportunity for public comment on both EAs and EISs; rather than allowing agencies to avoid inviting public comment altogether, which would be the net effect of the proposed rule. We will suggest specific language to address concern this in our section-by-section comments below.
6. Section II. D.4. Proposed Revisions to “Purpose and Need” (§ 1502.13) (FR p. 1701)
In this section, CEQ again cites court cases in an attempt to justify more narrowly defining “Purpose and Need” in order to make the process more efficient. However, this assertion also narrows the range of reasonable alternatives. Over the years, NPS (and other agencies) have been challenged when the declared Purpose and Need for a project is used to justify the proposed action, thus eliminating alternatives from further consideration. Please see specific comments on our concerns regarding using an applicant’s Purpose and Need for proposed projects affecting NPS lands.
7. Section II.J. Proposed Revisions to Definitions (Part 1508), specifically the paragraphs on “Clarifying the meaning of ‘effects’” (FR pp. 1707-08)
The proposed rule completely removes the concepts of “cumulative” and “indirect” effects from the NEPA regulations. The proposed exclusion of these key terms will have two major consequences for future NEPA reviews: (1) cumulative and indirect effects will no longer be used to determine the threshold of significance, and (2) such effects will no longer be analyzed in EAs or EISs. This will make impact analyses more superficial and less forward thinking, contrary to the fundamental goal of NEPA.
As noted above, cumulative impact analysis was part of the not just the 1978 regulations but also the 1971 CEQ Guidelines and the 1973 CEQ Guidelines. Removal of this key term is contrary to the statute, which requires analysis of cumulative impacts. See Hanly v. Kleindienst, 471 F.2d 823 (2d Cir. 1972). The Court in Hanly interpreted the phrase “significantly” to include the “cumulative harm that results from [the action’s] contribution to existing adverse conditions or uses in the affected area.” The Court further explained that “in the absence of any Congressional or administrative interpretation of the term,” the term requires an agency to “review the proposed action in light of at least . . . the absolute quantitative adverse environmental effects of the action itself, including the cumulative harm that results from its contribution to existing adverse conditions or uses in the affected area.”
Removal of the requirement to consider cumulative and indirect impacts is also contrary to Sections 102(2)(A) and 102(1) of NEPA. Section 102(2)(A) requires that agencies “utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decision-making which may have an impact on man’s environment.” Section 102(1) requires agencies to administer federal laws in accordance with the policies in Section 101 of NEPA, which include “trusteeship of the environment for succeeding generations.” It is impossible to comply with these statutory requirements without consideration of the cumulative and indirect impacts of the action.
This section also states that CEQ purports to “codify a key holding of Public Citizen relating to the definition of effects to make clear that effects do not include effects that the agency has no authority to prevent or would happen even without the agency action, because they would not have a sufficiently close causal connection to the proposed action. This clarification will help agencies better understand what effects they need to analyze and discuss, helping to reduce delays and paperwork with unnecessary analyses.” The proposed rule misstates the holding of Public Citizen. Public Citizen simply held that an agency did not have to consider environmental effects that were the result of presidential action instead of agency action. Public Citizen did not hold that NEPA does not require an agency to consider the foreseeable and significant impacts of its action just because it does not have the authority to prevent the impacts.
8. Section II.L. Additional Issues on Which CEQ Invites Comment (FR pp. 1710 -1711)
CEQ invites comments on specific changes to any provisions in parts 1500 to 1508 of the CEQ regulations, including revising or adopting as regulations existing CEQ guidance or handbooks. We offer the following comments:
There are significant portions of CEQ’s 2010 “Final Guidance for Federal Departments and Agencies on Establishing, Applying, and Revising Categorical Exclusions Under the National Environmental Policy Act”[6] that should be incorporated (or incorporated by reference) into the proposed rule. In general, the guidance to federal agencies is very helpful in explaining CEs, “extraordinary circumstances,” and related topics; yet there is no reference to this guidance in the proposed rule or Preamble. As a result, we are concerned that once the new rule is finalized, CEQ may significantly change or eliminate the CE guidance without opportunities for public comment. We are also very concerned about the lack of guidance or definition in the proposed rule for what constitutes “extraordinary circumstances” and will comment about it specifically in §§ 1501.4 and 1508 below. In addition, CEs should document appropriate rationale for determining that impacts are not significant.
V. SECTION-BY-SECTION COMMENTS
A. PART 1500—PURPOSE AND POLICY (FR pp. 1712-1714)
1. § 1500.3 NEPA compliance (FR pp. 1712-13)
(a) Mandate.
This section should say “comply with applicable executive orders,” rather than specifying which ones currently apply so this section doesn’t become outdated under future Administrations.
(c) Actions regarding NEPA compliance.
This section encourages agencies to impose an “appropriate bond requirement or other security requirement as a condition for a stay” of an agency action pending administrative or judicial review of such actions. Agencies cannot determine federal court procedures and should not impose onerous bond requirements on citizens and nonprofits that would discourage them from fully participating in the NEPA process including the exercise of rights to appeal or judicial review of agency decisions.
2. § 1500.4 Reducing paperwork. Agencies shall reduce excessive paperwork by: (c) Reducing the length of environmental documents by means such as meeting appropriate page limits (§§ 1501.5(e) and 1502.7) (FR p. 1713)
In principle, we support the concept of reducing paperwork related to NEPA documents when appropriate to the circumstances. However, we strongly oppose CEQ’s proposal to impose “presumptive page limits” on EAs and EISs. The specific page limits proposed in §§ 1501.5(e) and 1502.7 are NOT supported by CEQ’s own findings (see Preamble comment #3 above) regarding the typical length of NEPA documents. As a result, CEQ’s proposed limits appear arbitrary and capricious and without valid justification. In our experience, there are numerous instances, such as in the preparation of comprehensive management plans (e.g., an NPS GMP, a BLM RMP, a USFS forest plan, etc.) involving multiple activities impacting multiple resources in multiple locations, in which it simply is not feasible for the agency to adequately describe and analyze the spectrum of potential impacts in the number of pages proposed. We will comment more specifically on this topic in §§ 1501.5(e) and 1502.7 below.
3. § 1500.5 Reducing delay. Agencies shall reduce delay by: (g) Meeting appropriate time limits for the environmental assessment and environmental impact statement processes (§ 1501.10) (FR pp. 1713-14)
CEQ’s proposed limits appear arbitrary and capricious and without valid justification. In our experience, there are numerous instances, such as in the preparation of a long-term comprehensive management plan (e.g., a NPS GMP, a BLM RMP, a USFS forest plan, etc.) involving multiple activities impacting multiple resources in multiple locations, in which it simply is not feasible for the agency to adequately describe and analyze the spectrum of potential impacts in the reduced time frame proposed. We will comment more specifically on the proposed time limits under § 1501.10 below.
B. PART 1501—NEPA AND AGENCY PLANNING (FR pp. 1714-1718)
1. § 1501.1 NEPA threshold applicability analysis. (FR p. 1714)
As written, subsection (a) provides criteria for determining whether NEPA applies; and subsection (b) that provides that Federal agencies may make these determinations in their agency NEPA procedures (§ 1507.3(c)) or on an individual basis.
In our experience determining if NEPA applies for NPS projects, there have been instances where the agency has considered proposals and actions that may not be consistent with existing laws, either at the national level applicable to all parks, or the enabling legislation specific to a single park. NPS, in these instances, has disclosed the conflict of laws, regulations etc. and has stated in those documents that the enabling legislation for a specific park would need to be amended by Congress to adopt a particular alternative. For example, hunting in NPS units to manage deer and elk populations may conflict with the legislation, yet implementation of hunting may be legitimately considered and authorized by amending the park’s enabling legislation.
To address this concern, we request that a new subsection (b) be inserted immediately after subsection (a)(5) and before current subsection (b); and that current subsection (b) be renumbered as (c). The new subsection (b) should state the following:
(b) Federal agencies must consider conflicts with existing laws, policies and regulations when considering major federal action and whether NEPA applies. Such conflicts do not necessarily disqualify the agency from moving forward with the NEPA process. However, all conflicts with existing laws and policies shall be disclosed in the NEPA document for public review and comment.
2. § 1501.2 Apply NEPA early in the process (FR p. 1714)
Subsection (a) states: “Agencies should integrate the NEPA process with other planning and authorization processes at the earliest reasonable time to ensure that agencies consider environmental impacts (emphasis added) in their planning and decisions, to avoid delays later in the process, and to head off potential conflicts.”
We are concerned that direct, indirect and cumulative impacts are omitted from consideration throughout the proposed rule. The NPS cannot meet its statutory “conservation mandate” if it does not consider these effects. It is imperative that these potential impacts be identified early in the NEPA planning process so that necessary relevant data can be obtained sooner rather than later. To address this concern, we request that the following sentence be added to the end of subsection (a):
In considering whether the effects of the proposed action are significant, agencies shall analyze the potentially affected environment and degree of the direct, indirect and cumulative effects of the action.
3. § 1501.4 Categorical exclusions (FR p. 1715)
Subsections (b) and (b)(1) use the term “extraordinary circumstances” as a key indicator for agencies to consider when evaluating the appropriateness of using a categorical exclusion versus a more rigorous level of analysis. Yet this term is notdefined anywhere in the current or proposed regulations. To address this concern, we request that CEQ add the following sentence to subsection (b), making it the second sentence of the subsection; and add similar wording to define the term in § 1508.
Extraordinary circumstances are those factors or circumstances that help an agency identify situations or environmental settings that may require otherwise categorically-excludable action to be further analyzed in an environmental assessment or an environmental impact statement.
Furthermore, we have spot-checked department- and bureau-specific NEPA implementing regulations for a number of federal land management and environmental agencies. It is obvious from our review that CEQ’s lack of clear guidance on “extraordinary circumstances” has led to notable differences, in effect significant inconsistencies, in the interpretation(s) and description(s) of the term across the federal government. Under CEQ’s proposed rule, we are concerned that potential impacts to national parks and other places or resources with special conservation mandates will not be adequately evaluated in determining whether a CE is appropriate or not. To address this concern, we request that CEQ add a new subsection (b)(1) to the proposed rule, as follows (and then renumber current subsections (b)(1) and (b)(2) accordingly):
(b)(1) Agencies shall consider the presence of the following resources and conditions as extraordinary circumstances that must be evaluated in determining whether a categorical exclusion is appropriate. These may be supplemented in the agency’s NEPA procedures (§ 1507.3(d)(2)(ii)) by additional extraordinary circumstances based on the agency’s mandates and policies:
(i) Federally listed threatened or endangered species or designated critical habitat and species proposed for Federal listing or proposed critical habitat;
(ii) Flood plains, wetlands, or municipal watersheds;
(iii) Congressionally or Presidentially designated areas, such as units of the national park system, wilderness, wilderness study areas, potential wilderness areas, wild and scenic rivers, national monuments, or national recreation areas;
(iv) Native American, Native Alaskan, or Native Hawaiian religious or cultural sites; and
(v) Archaeological sites, or historic properties or areas.
In addition, current subsection (b)(1),which should be renumbered as (b)(2), would allow for mitigated CEs. In our experience, such an approach can be quite problematic. During our careers we have reviewed numerous U.S. Forest Service (USFS) CEs for forest “management” actions near national park boundaries that included scores of mitigation measures and stipulations, the purported combined effects of which can be difficult to discern or quantify. In most cases, the net impacts of the proposed action remained widespread and potentially harmful to adjacent NPS units despite the plethora of mitigation measures proposed. To address this, we request the following wording be added to the end of subsection (b)(1):
If mitigation is considered appropriate where an action is normally categorically excluded, the mitigation should be integrated and analyzed within the proposal. If mitigation is complex or several categorical exclusions are required to cover the action, then an environmental assessment shall be prepared.
4. § 1501.5 Environmental assessments. Subsection (a): An agency shall prepare an environmental assessment for a proposed action that is not likely to have significant effects or when the significance of the effects is unknown unless the agency finds that a categorical exclusion (§ 1501.4) is applicable or has decided to prepare an environmental impact statement. (emphasis added to underlined sections) (FR p. 1715)
We are very concerned that in § 1508 CEQ proposes to revise the longstanding definition of “effects” (or “impacts”), essentially eliminating the important concepts of direct, indirect and cumulative effects, which in our experience must be considered in an EA. We will comment specifically on the proposed definition in § 1508 below.
Subsection (d): Agencies shall involve relevant agencies, applicants, and the public, to the extent practicable in preparing environmental assessments. (Emphasis added to underlined sections.)
While this subsection is written as a “shall do” provision, the guidance it provides is so vague that it is essentially discretionary and will undoubtedly result in wide variations in interpretation among federal agencies. Again, we emphasize that public involvement is one of the cornerstones of Congress’s “declaration of national environmental policy” in the 1970 Act. 42 U.S. Code § 4331(c) states: “The Congress recognizes that each person should enjoy a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment” (emphasis added).
In our experience, there is nothing more central to a citizen’s expression of his or her environmental responsibility under NEPA than exercising the opportunity to comment on proposed federal actions. In our view, CEQ’s proposed rule would, in effect, institutionalize the illegal reduction or elimination of public comment on EAs (similar to what BLM has already done in its own NEPA policies) by making inviting public comment essentially discretionary and imposing unrealistic timelines to complete NEPA documents that will force agencies to cut corners to save time where they can (which will inevitably include reducing public comment opportunities). For example, just a few weeks ago a district court found BLM’s policy to reduce or eliminate public comment opportunities on oil and gas lease sale EAs “arbitrary and capricious.” Western Watersheds Project v. Zinke, 2020 WL 959242 (D. Idaho Feb. 27, 2020).
Rather than create uncertainty about whether the public will have the opportunity to comment on EAs, CEQ should provide clear guidance in the form of “presumptive” time limits for public comment. Establishing a clear minimum standard would: 1) Encourage robust public participation in the NEPA process; and 2) Ensure relative consistency in how federal agencies interpret and implement public comment provision. We therefore request the following wording be added to sub-section (d), which states:
(d) Agencies shall involve relevant agencies, applicants, and the public, to the extent practicable in preparing environmental assessment (add) by affirmatively soliciting comment for no less than 30 days.
Subsection (e): The text of an environmental assessment shall be no more than 75 pages, not including appendices, unless a “senior agency official” approves in writing an assessment to exceed 75 pages and establishes a new page limit. (FR p. 1715)
The most troubling parts of this section are the mandated time frames (1 year) and page limits (75) for EAs that can only be amended by a “senior agency official.” As discussed previously, neither the time frames nor page limits are supported by CEQ’s findings on the typical length and preparation time of an EA. Actual time frames and page limits are often 50-100% higher than the limits proposed by CEQ.
In addition, § 1508(dd) of the proposed rule defines this official as being “at the assistant secretary rank or higher, or equivalent.” In most departments of the Federal Government, this would vest such authority only in a political appointee, rather in a career professional manager with line authority for approval of NEPA procedures and documents. Such a move would unnecessarily politicize all future decision making about how much time or how many pages are appropriate to the circumstances. Such decisions, inevitably, will be viewed as political and would add no value to the process. This term appears in and raises the same concern in a number of places in the proposed rule. We will suggest a revised definition for this term in § 1508(dd) comments below.
To address our concerns about page and time limits for EAs, we request that subsection (e) be re-written as follows:
In preparing Environmental Assessments, the goal should be to complete the process in 1 year and should generally be no more than 100-200 pages. However, complex projects where these time and page parameters cannot reasonably be met, the agency should consult with the senior agency official (see §1508(dd)) overseeing NEPA. The agency should consider preparation of an environmental impact statement for complex projects with interrelated impacts to afford the agency the necessary time and analysis to inform decision making.
Subsection (f): Agencies may (emphasis added) apply the following provisions to environmental assessments: (1) Section 1502.22 Incomplete or unavailable information; (2) Section 1502.24 Methodology and scientific accuracy; and (3) Section 1502.25 Environmental review and consultation requirements (FR p. 1715)
This provision should be a “shall,” not a “may.” Elsewhere in the regulations it emphasizes that this information shall be part of an EA and EIS. Especially with EAs, an agency relies on disclosure of this information in order to reach a FONSI that is lawful and not arbitrary and capricious.
5. § 1501.7 Lead agencies. Subsection (h)(2) With respect to cooperating agencies, the lead agency shall: Use the environmental analysis and proposals of cooperating agencies with jurisdiction by law or special expertise, to the maximum extent practicable, consistent with its responsibility as lead agency. (emphasis added) (FR p. 1716)
We state the obvious that the National Park Service has the jurisdiction and special expertise to analyze impacts within units of the National Park System, including those impacts caused by major projects initiated and planned by other agencies and originating outside of, but near, park boundaries.
Regrettably, in recent years there have been numerous instances of lead agencies (rather than the NPS) preparing inadequate analyses of such impacts to national park resources. These analyses typically have given inadequate consideration to the NPS “conservation mandate” and “non-impairment standard” (described elsewhere in these comments). Examples are numerous and include: (1) numerous oil and gas leasing EAs prepared by the BLM that have provided little to no analysis of impacts to parks located in close proximity to the leasing area; (2) several instances of FERC EISs for gas pipelines that run through units of the National Park System such as the Appalachian National Scenic Trail and the Blue Ridge Parkway; and (3) the Army Corps of Engineers (Corps) failure to prepare an EIS for the transmission line over the James River that the D.C. Circuit found unlawful in part because the Corps did not adequately respond to NPS’s concerns and analyses of the line’s impacts to several units of the National Park System.
As a result, we believe the NPS should be responsible for and play a primary role in analyzing potential impacts to park resources caused by projects originating outside of park boundaries. Similarly, other federal land management agencies should be responsible for and play a primary role in analyzing potential impacts to resources within their respective jurisdictions caused by projects originating outside of those jurisdictions. To address these concerns and ensure that the provisions of this subsection are, in fact, followed by lead agencies, we request that CEQ add the following sentence to the end of subsection (h)(2):
When cooperating agency analysis or proposals are incorporated into a lead agency’s environmental document, the source agency for such information shall be disclosed in the document.
6. § 1501.9 Scoping (FR p. 1716-17)
This section implies scoping is only needed for an EIS. It also implies scoping can begin before the notice of intent (NOI). Pre-planning and consultation is emphasized. It suggests that scoping shall begin when a proposal and alternatives are known in enough detail to solicit public comment. However, we are concerned that agencies have been challenged for having so much up-front work done that it appears locked into the Proposal/Preferred Alternative too early in the process.
Scoping assists the agency in determining the scope, alternatives, and substantive issues, and also how the proposal may be modified to avoid significant impacts. In some instances, such as management plan EAs and EISs, agencies may have a broader need for scoping to identify issues, scope and range of alternatives. A proposed action may be broad in this case, such as when a park (agency) seeks to reduce conflicts between visitors and wildlife resources by developing a wildlife management plan/NEPA document. The agency should seek public comments on desired future conditions, issues regarding wildlife management, existing environmental conditions, research and scientific information that should be considered, and a range of alternatives.
In recent years, BLM has often eliminated scoping for oil and gas leasing activities or has given the public only 10 or 15 days to provide scoping comments on complex inter-related resource impacts. Given the amount of leasing actions on the table and the complexity of potential impacts to park resources, the public cannot provide meaningful comments in 10 or 15 days. To address this concern, we request the following language be added to subsection (a) Generally:
Scoping requirements for environmental assessments shall be consistent with those for environmental impact statements, including issuance of a public scoping notice and providing a minimum of 30 days for public comment on the scope of the NEPA document. Early scoping and advance planning can proceed prior to official notice; however, the agency shall not pre-determine its preferred alternative without completing the impact analysis during the NEPA process.
6. § 1501.10 Time limits. (b) To ensure timely decision making, agencies shall complete:
(1) Environmental assessments within 1 year unless a senior agency official of the lead agency approves a longer period in writing and establishes a new time limit. One year is measured from the date of decision to prepare an environmental assessment to the publication of a final environmental assessment (emphasis added) (FR p. 1717)
It is unclear from the underlined section if the 1-year deadline includes issuance of a FONSI or not. For example, based on wording in §1501.6, it appears that a FONSI is not necessarily part of a final EA. We therefore recommend that the presumptive time limits be changed to 1.5 years for an EA, including the FONSI. For clarity, we suggest this section be re-worded as follows:
One-and-a-half years is measured from the issuance of the public scoping notice until the publication of a finding of no significant impact OR the publication of a notice of intent to prepare an environmental impact statement in the Federal Register, whichever is appropriate under the circumstances.
(2) Environmental impact statements within 2 years unless a senior agency official of the lead agency approves a longer period in writing and establishes a new time limit. Two years is measured from the date of the issuance of the notice of intent to the date a record of decision is signed.
As stated in Preamble comment # 3 above, the proposed time limits for EAs and EISs are not supported by CEQ’s own findings described in Section I.B.3. of the Preamble. As a result, CEQ’s proposal appears arbitrary and capricious. Our experience has been that in order to be effective, the NEPA process must be reasonably flexible and adaptable to the magnitude and complexity of the project and to the potential environmental effects. CEQ’s findings (i.e., data) strongly suggest that it would be more reasonable to “presume” time limits that are at least 50-100% higher than what CEQ is proposing. Therefore, we request that the presumptive time limit for completing an EIS be changed to “3 years” with the provision “a senior agency official” can approve a longer time period. We are also concerned about CEQ’s proposed definition of “senior agency official” and will comment about it specifically in § 1508(dd) below.
(2)(c) The senior agency official may consider the following factors in determining time limits:
(1) Potential for environmental harm.
(2) Size of the proposed action.
(3) State of the art of analytic techniques.
(4) Degree of public need for the proposed action, including the consequences of delay.
(5) Number of persons and agencies affected.
We are concerned that the “public need for the proposed action” (in Subsection 4) is highly subjective and can be interpreted many ways depending upon one’s interest (or special interest). For example, some would say the public “needs” a pipeline to obtain cheaper natural gas; or the public “needs” to have access to a popular fishing area and the most “efficient” way to get there is by off-road vehicle use. To address this concern, we request that Subsection (4) be re-worded as follows:
(4) Degree and relevance of public need for the proposed action, while considering the impacts on the human environment.
In addition, we are concerned about Subsection (5)’s consideration of “number of persons and agencies affected.” This appears to be in conflict with provisions for environmental justice, regardless of the number of people affected. For example, a Tribe with a small population may sustain significant impacts of a large, complex pipeline proposal to a multitude of resources, including cultural values, water quality, and influx of workers. To address this concern, we request that Subsection (5) be deleted.
7. § 1501.11(b) Tiering (FR pp. 1717-18)
Subsection (b) describes when it is appropriate to tier a new NEPA document from an existing EIS or EA. The examples provided include: [when tiering] (1) from a programmatic, plan, or policy EIS to a program, plan or policy EA of lesser or narrower scope or to a site-specific EIS or EA, and (2) from an EIS or EA on a specific action at an early stage of a project to an EIS or EA on a later stage of the project (such as environmental mitigation). In general, we support the concept of “tiering” as proposed in sub-section (b), but only as long as the underlying NEPA document (that the new NEPA document is tiered from) is relatively current and relevant to and inclusive of the current proposed action.
Unfortunately, in recent years we’ve seen numerous occasions in which federal agencies tier EAs off of grossly outdated EISs that did NOT contemplate the type of project currently being proposed. For example, it has become all too common for BLM to tier oil and gas lease sale EAs off of 1990’s era resources management plans/EISs that did not consider the impacts of fracking technology (which was not in common use when the EIS was prepared). Yet the proposed leasing would obviously involve extensive fracking near national park boundaries without adequately analyzing the impacts of that technology on nearby resources.
It is essential that CEQ establish a baseline standard for the “adequacy” of a NEPA document (e.g., an EIS) to serve as the foundation document for tiering. We recommend that CEQ add a sub-section # (b)(3), which states as follows:(b) Tiering is appropriate when the sequence from an environmental impact statement or environmental assessment is: (add)
(3) From a valid environmental impact statement or environmental assessment that is both current (not more than 10 years old) and relevant to the specifics of the proposed action.
C. PART 1502—ENVIRONMENTAL IMPACT STATEMENT (FR pp. 1718-1721)
1. § 1502.2 [EIS] Implementation (FR p. 1718)
This section lists desired characteristics in an EIS, which include (emphasis added to underlined sections below):
(a) Environmental impact statements shall not be encyclopedic.
(b) Impacts shall be discussed in proportion to their significance. There shall be only brief discussion of other than significant issues. As in a finding of no significant impact, there should be only enough discussion to show why more study is not warranted.
(c) Environmental impact statements shall be analytic, concise, and no longer than necessary to comply with NEPA and with the regulations in parts 1500 through 1508. Length should be proportional to potential environmental effects and project size.
(g) Environmental impact statements shall serve as the means of assessing the environmental impact of proposed agency actions, rather than justifying decisions already made.
In addition, the provision in item (g) should be true for EAs as well; i.e., EAs shall serve as the means of assessing the environmental impact of proposed agency actions, rather than justifying decisions already made. Throughout the proposed regulations, CEQ mandates a narrow Purpose and Need, which often becomes the justification for the project, rather than allowing consideration of a genuine range of reasonable alternatives.
2. § 1502.5 Timing. (a) For projects directly undertaken by Federal agencies the environmental impact statement shall be prepared at the feasibility analysis (go-no go) stage and may be supplemented at a later stage if necessary. (FR p. 1719)
Frankly, we cannot imagine CEQ’s rationale for this provision and have to wonder if it has been worded incorrectly. In brief, the guidance is confusing and the process it proposes would be extremely inefficient. A feasibility analysis should be prepared BEFORE an agency prepares an EIS that evaluates a reasonable range of alternatives and their related impacts. For example, the feasibility of a project would best be considered during internal scoping. If a project is deemed “not feasible” at that point, then why go through the massive effort of developing and analyzing alternatives that cannot be implemented? We strongly recommend that CEQ revise the wording of this section so that the feasibility analysis is considered PRIOR to completion of an EIS. For example, this could be accomplished by adjusting the wording to subsection (a), as follows (added wording shown in bold italics):
(a) For projects directly undertaken by Federal agencies the draft environmental impact statement shall may be prepared at the feasibility analysis (go-no go) stage, allowing flexibility for the agency to decide when a proposal and alternatives lend itself to initiating an environmental impact statement. This analysis may be supplemented at a later stage if necessary.
3. § 1502.7 [EIS] Page limits. The text of final environmental impact statements (e.g.,paragraphs (a)(4) through (6) of § 1502.10) shall be 150 pages or fewer and, for proposals of unusual scope or complexity, shall be 300 pages or fewer unless a senior agency official of the lead agency approves in writing a statement to exceed 300 pages and establishes a new page limit. (FR p. 1719)
As stated in our Preamble comment # 3 above, the proposed time limits are contradicted by CEQ’s own findings described in Section I.B.3. of the Preamble. Our experience has been that in order to be effective the NEPA process must be reasonably flexible and adaptable to the magnitude and complexity of the project and to the potential environmental effects. CEQ’s data strongly suggests that it would be more reasonable to” presume” time limits that are at least 50-100% higher than what CEQ is proposing. We therefore recommend that the presumptive page limit for EISs be changed to 200 pages for a “routine” EIS and 400 pages for more complex projects, if approved by the bureau’s official responsible for NEPA compliance.
4. § 1502.8 Writing. (FR p. 1719)
This section requires plain language be used in NEPA documents. We suggest that this provision be applied to these proposed regulations. Many of the terms used by CEQ in the preamble and body of the proposed rule itself are complex or legalistic and are not clear, making it difficult for the public to provide meaningful comments. This proposed rule should be written in plain language!
5. § 1502.9 Draft, final, and supplemental [EISs]. (d) Supplemental environmental impact statements. Agencies: 4. May find that changes to the proposed action or new circumstances or information relevant to environmental concerns are not significant and therefore do not require a supplement. The agency should document the finding consistent with its agency NEPA procedures (§ 1507.3), or, if necessary, in a finding of no significant impact supported by an environmental assessment. (FR p. 1719)
First, subsection (d)(1) sets the context for this guidance as being “either draft or final environmental impact statements.” As a result, the discussion in subsection (d)(4) regarding use of an EA and FONSI is very confusing. Given the context includes DEISs, CEQ seems to be saying that when an agency prepares a DEIS, then gets new information or circumstances change, the agency can decide the new information/circumstances is not significant, suspend completion of the EIS and issue an EA and FONSI instead. To make this section more clear, we suggest the following wording (in italics) be added to the start of the subsection:
If new information or circumstances that are not significant come to light after completion of a draft environmental impact statement, the agency should prepare a final environmental impact statement and disclose this information and the agency’s findings. If such information comes to light after completion of a final environmental impact statement, the agency should document the finding consistent with its agency NEPA procedures (§ 1507.3), or, if necessary, in a finding of no significant impact supported by an environmental assessment.
6. § 1502.10 Recommended Format [for EISs]. (FR p. 1719)
Subsection (a) describes a standard format for environmental impact statements that the agency should follow unless the agency determines that there is a more effective format for communication. Then subsections (a) (1-9) list, but do not describe, the respective headings (or parts) of the format. Subsequent sections of the proposed rule (i.e., §§ 1502.11 through 1502.20) provide detailed guidance regarding what should be included within each respective heading or part of the standard format identified in §1502.10(a)(1-9). To reinforce the connection between the “recommended format” (i.e., the headings) and the specific guidance for each of those headings, we recommend the following language be added to the beginning of subsection (a):
(a) (add) Consistent with other requirements in this part,…[a]gencies shall use a format for environmental impact statements…
7. § 1502.11 Cover. Subsection (g) The estimated total cost of preparing the environmental impact statement, including the costs of agency full-time equivalent (FTE) personnel hours, contractor costs, and other direct costs shall be included in the EIS cover. (FR pp. 11719-20)
We do not understand the rationale for including preparation costs on the cover page of an EIS. What bearing does this have on the quality of the analysis and decision making? If preparation costs are significant, why wouldn’t they be described in the impact analysis portion of the document? Will agencies face litigation if it is alleged that an EIS was too costly to prepare or that insufficient funding was expended to prepare an adequate NEPA document? To address this concern, we request subsection (g) be replaced with the following:
(g) Agencies should have costs of preparing an environmental impact statement readily available should they be requested. If preparation costs are significant, the agency should describe them in the affected environment and environmental consequences section of the statement.
8. §1502.13 Purpose and need. (last sentence) When an agency’s statutory duty is to review an application for authorization, the agency shall base the purpose and need on the goals of the applicant and the agency’s authority (emphasis added). (FR p. 1720)
We have observed considerable shortcomings in such an approach used by the Federal Energy Regulatory Commission (FERC) when preparing EISs for long-distance pipeline projects and the Army Corps of Engineers (Corps) when preparing EAs for transmission lines. FERC and the Corps routinely make the applicant’s purpose and need for the project the driving force in the NEPA process in defining scope and range of alternatives, regardless of potential adverse impacts to adjacent areas with special protected status such as parks, wilderness areas, or wild and scenic rivers. For example, the purposes and needs for the Mountain Valley and Atlantic Coast pipelines and the Surry-Skiffes Creek transmission line were to meet the needs of the applicant. Therefore, reasonable alternatives that would avoid or mitigate impacts to the Appalachian National Scenic Trail, or Colonial National Historical Park, were eliminated as “taking too long” or “too costly” for the applicant to consider.
It should go without saying that the NEPA process is a federal mandate, not the responsibility of the applicant. EISs should acknowledge the applicant’s proposal and need for federal authorization. However, the federal agency’s purpose and need should be to consider the applicant’s proposal in accordance with its authority, policies and regulations. The range of alternatives would hence not be constrained by the applicant’s desires. To address this concern, we request that the sentence quoted above be removed this from this section and replaced with:
When an agency’s statutory duty is to review an application for authorization, the purpose and need for action is to respond to an applicant’s proposal. The applicant’s need for the project should be disclosed in the environmental impact statement along with a reasonable range of alternatives to meet the agency’s purpose, need and objectives.
9. § 1502.14 Alternatives including the proposed action. Subsection (c) states “Include the no action alternative.” (FR p. 1720)
The proposed regulations need to provide requirements for disclosing the no action alternative, not only in this section, but carried through to the affected environment and environmental consequences section. Most agencies merely state that no action means nothing would change. However, this cannot be compared to action alternatives if “no action” is merely a statement of no change.
In our experience, “no action” is not necessarily a benign option. It can mean not addressing (actually, failing to address) an environmentally damaging situation, which could have significant adverse impacts if left unaddressed. For example, if NPS had elected “no action” for the Cape Hatteras National Seashore ORV Management Plan/EIS, then the impacts of unregulated use of ORVs on Seashore beaches, especially significant ongoing adverse impacts to beach nesting wildlife, would have continued and likely resulted in the extirpation of some of the affected species from the Seashore.
To ensure disclosure of the impacts of inaction (or no action) and to provide a basis for comparison of benefits and impacts of the action alternatives, the no action alternative must be described and evaluated to the same level of detail as action alternatives. This includes over time, so the public and decision maker can adequately assess consequences of not taking action. For example, by comparing the effects of no action to those of a range of reasonable action alternatives in the Cape Hatteras EIS, the relative harms and benefits of each alternative was clearly articulated. Such a comparison was a critical piece of the analysis in the EIS. To address this concern, we request Subsection 9(c) be re-worded as follows:
The NEPA analysis shall include full disclosure and analysis of impacts of the no action alternative through time relative to the life of the proposed project to allow for comparison with action alternatives.
10. § 1502.16 Environmental consequences. (FR p. 1720)
Subsection (a)(10) states: “Where applicable, economic and technical considerations, including the economic benefits of the proposed action. In our experience “economic effects” can be positive or negative (i.e., benefits or costs), so it seems odd that CEQ only requires reporting “benefits.” We request that this subsection be re-worded as follows:
Where applicable, economic and technical considerations including the economic benefits and costs of the proposed action and alternatives.
11. § 1502.18 Certification of submitted alternatives, information, and analyses section. Based on the summary of the submitted alternatives, information, and analyses section, the decision maker for the lead agency shall certify in the record of decision that the agency has considered all of the alternatives, information, and analyses submitted by public commenters for consideration by the lead and cooperating agencies in developing the environmental impact statement. Agency environmental impact statements certified in accordance with this section are entitled to a conclusive presumption that the agency has considered the information included in the submitted alternatives, information, and analyses section. (emphasis added to underlined sections) (FR p. 1720)
Given the underlined wording above, we are concerned that the “certification” is to be based solely on the EIS “summary” described in § 1502.12, which can be no more than 15 pages long. Compared to the level of information and analysis provided in the entire EIS, the summary seems like an inadequate basis to make such a certification. To address this concern, we request the wording be changed to say the “certification” will “based on the findings of the environmental impact statement.”
Additionally, we doubt that CEQ has authority to create a “conclusive presumption” standard for judicial review under the Administrative Procedures Act (APA) of whether an agency adequately reviewed the information included in the submitted alternatives, information, and analyses submitted by public commenters. It would be illegal to replace the “hard look” standard established by the Supreme Court, Kleppe v. Sierra Club, 427 U.S. 390 (1976), with a “hard certification standard.” Only Congress can replace the “hard look” standard under the APA and Kleppe with a “conclusive presumption” standard and its adoption by CEQ.
Adoption of this standard by regulation would violate the separation of powers doctrine by creating a conclusive presumption without Congress and foreclosing judicial review by regulation. A conclusive presumption is also commonly used to state that the existence of one fact is deemed to prove the existence of another fact with legal significance, not the existence of “adequate consideration.”
12. § 1502.21 Publication of the environmental impact statement. (FR p. 1721)
This section requires agencies to publish the entire Draft and Final EIS “electronically (or in paper copy, if so requested due to economic or other hardship).” It is not clear how “hardship” could be a legitimate factor in determining whether a citizen should be able to see a hard copy of an EIS. There may be generational and other factors contributing to a reader’s preference. Regrettably, many agencies are already making hard copies all but impossible to obtain by the general public. In addition, this section contradicts previous sections restricting agencies to only publishing changes to the DEIS and not print or publish the entire FEIS. For the sake of disclosure as well as public involvement, publication requirements for EISs should, at a minimum, state that:
Multiple hard copies of all NEPA documents shall be made available in local libraries and in the offices of the lead and cooperating agencies. In addition, hard copies may be made available upon request.
13. § 1502.24 Methodology and scientific accuracy. (FR p. 1721)
This section states the agency is not required to gather additional data and research. It conflicts with the wording § 1502.22 ,which states that agencies are to obtain data and research unless cost is a factor, and disclose how the agency made conclusions based upon available data and disclose what’s missing. We recommend that CEQ use the § 1502.22 language in § 1502.24 to ensure consistency.
D. PART 1503—COMMENTING ON ENVIRONMENTAL IMPACT STATEMENTS (FR pp. 1721-22)
1. § 1503.1 Inviting comments and requesting information and analyses. (b) An agency may request comments on a final environmental impact statement before the final decision. An agency shall request comments and provide a 30-day comment period on the final environmental impact statement’s submitted alternatives, information, and analyses section. (FR p. 1721-22)
Currently, the 30 day “wait period” is between the FEIS and ROD. In our experience, the public does not comment (or know they could comment) during this period because it is not clear whether comments would be considered. However, commenting on the FEIS is an essential part of the NEPA process that allows the public to determine whether the agency considered its comments on the DEIS in preparing the FEIS. Again, in our experience, responses to public comment on the DEIS can be nothing more than “thank you for your comment.” This apparently is a common practice with FERC’s EISs. To address this concern, we request Subsection (b) be re-worded to state:
An agency shall invite comments on a final environmental impact statement; this shall be a 30 day comment period prior to issuing a record of decision. The record of decision shall provide a summary of comments on the draft and final environmental impact statements with an explanation of how the agency responded.
2. § 1503.3 Specificity of comments and information. (last part of) Subsection (b), which states: Comments on and objections to this section shall be raised within 30 days of the publication of the notice of availability of the final environmental impact statement. Comments not provided within 30 days shall be considered exhausted and forfeited, consistent with § 1500.3(b). (FR p. 1722)
Section 1503.1, as currently proposed, states that an agency “may” request comments on the FEIS. We believe this should be a “shall” (not a “may”). In any event, the opportunity to comment on the FEIS should be announced or published at the same time as the NOA. Absent that, it is unclear if comments have any weight after issuance of the FEIS.
We are also concerned that comments and objections submitted after this 30 day period “shall” be considered “exhausted and forfeited.” We understand that, as an administrative procedure, the agency may not consider comments submitted or received AFTER an advertised comment period has ended. However, the public cannot forfeit its legal right to raise objections, under the APA or through litigation, to the agency’s decision after the ROD is released.
Also, there are many “shalls” in this section regarding the specificity of public comments on an EIS, which collectively violates the intent of the “plain English” requirement. The interested and affected public should be guided to make substantive comments, but allowing an agency to disregard comments due to lack of detail is not prudent. To address this concern, we request that the phrase “exhausted and forfeited” be eliminated and replaced with the following:
Comments on the final environmental impact statement are most helpful prior to release of the record of decision. The public may object to the final decision in the record of decision through an agency’s objection process, or judicial review.
PART 1504 PRE—DECISIONAL REFERRALS TO THE COUNCIL OF PROPOSED FEDERAL ACTIONS DETERMINED TO BE ENVIRONMENTALLY UNSATISFACTORY (FR pp. 1722-1723)
1. § 1504.2 Criteria for referral (FR p. 1723)
As described, agencies should use factors in deciding on a referral, including: (g) Economic and technical considerations, including the economic costs of delaying or impeding the decision making of the agencies involved in the action. This section asks that agencies consider the economic costs to the AGENCIES involved in the action before a referral. This should read “economic costs and benefits” before proceeding with a referral. NPS, for example, may benefit from deferring or referring to CEQ although this might be costly.
2. § 1504.3 Procedure for referrals and response. (b) The referring agency shall deliver its referral to the Council no later than 25 days after the lead agency has made the final environmental impact statement available to the Environmental Protection Agency, participating agencies, and the public, and in the case of an environmental assessment, no later than 25 days after the lead agency makes it available. Except when the lead agency grants an extension of this period, the Council will not accept a referral after that date. (FR p.1723)
EPA rates EIS’s (and some EA’s) at the draft stage and recommends measures to resolve conflicts. This section should acknowledge that when EPA rates an EA/EIS as “environmentally unsatisfactory,” the involved agencies shall note this in the FEIS and disclose what measures it has taken to address EPA’s concerns and that EPA will also rate the FEIS to determine how this has impacted the rating. (This is almost NEVER done leaving the public to sort out how EPA rated a draft, its concerns and how the agencies have responded.)
PART 1505—NEPA AND AGENCY DECISION MAKING (FR p.1723-1724)
1. §1505.2 Record of decision in cases requiring environmental impact statements. Subsection (b) states, in part: An agency may discuss preferences among alternatives based on relevant factors including economic and technical considerations and agency statutory missions. (FR pp. 1723-24)
The phrase “economic and technical considerations” is stated throughout the proposed regulations. It would be helpful to provide in the definitions of what this means; i.e., does “economic” mean hardship to the agency, the applicant, or “other”?
PART 1506—OTHER REQUIREMENTS OF NEPA (FR pp. 1724-1727)
1. § 1506.3 Adoption. Subsection (3)(f) An agency may adopt another agency’s determination that a categorical exclusion applies to a proposed action if the adopting agency’s proposed action is substantially the same. (FR p. 1724-25)
This should read “if the adopting agency’s proposed action is substantially the same (add) and the action is covered by the adopting agency’s list of categorical exclusions.” Just because proposed actions are the same and covered by one agency’s CEs, it may conflict with another agency’s list of CEs, mission, or statutory requirements.
2. § 1506.5 Agency responsibility for environmental documents (FR p. 1725)
Subsections (b) and (c) raise the possibility of applicants preparing EAs and EISs with an “independent review” by the responsible agency. We are concerned that the proposed guidance violates the basic requirement of NEPA that the agency, not the applicant, has the duty to prepare an EIS. E.g., Greene County Planning Board v. FPC, 45 F.2d 142 (2d Cir. 1972). We are also concerned that the proposed guidance is insufficiently specific to ensure that the applicant’s NEPA document complies with the responsible agency’s NEPA standards.
For example, FERC allows applicants to submit voluminous information on proposed pipelines, which then is included in the administrative record. FERC then cites this information and analysis, but doesn’t necessarily indicate if the information is adequate or consistent with other agencies’ mission and mandates, or if FERC’s “independent” review has resulted in different conclusions. To address this concern, we request that the following language be added to this section:
If applicants prepare these documents or portions of documents, it shall be consistent with the agency’s NEPA and other relevant regulations, policies and mandates and shall be independently vetted and reviewed by the agency. The agency shall disclose in the NEPA document its findings regarding the applicant’s information and how it was used in the NEPA analysis of impacts.
3. § 1506.6 Public involvement (FR p. 1725)
The extreme contrast between the general lack of detail and substance in sub-section (a) (i.e., “public involvement”) compared with substantial detail in sub-section (b) (i.e., “public notice”) is glaring. Whereas (b) provides very specific provisions for “public notice,” (a) merely says that agencies shall “make diligent efforts to involve the public.” In other words, agencies must “try” to include the public in the process, but are not “required” to do so.
Stating the obvious, public “notice” (no matter how extensive) is not the same as genuine public “involvement.” We remind you that, as stated in § 4331(c) of the Act, “Congress recognizes … that each person has a responsibility to contribute to the preservation and enhancement of the environment” (emphasis added). There is nothing more central to a citizen’s expression of this responsibility than having the opportunity to comment on proposed federal actions.
To remedy the gross imbalance between the proposed provisions for public involvement versus public notice, we request that CEQ establish a government-wide minimum standard for public involvement by adding the following language to sub-section (a).
(a) Make diligent efforts to involve the public in preparing and implementing their NEPA procedures. (§ 1507.3). (add) This shall include:
(1) Soliciting public comments for not less than 30 days on environmental assessments;
(2) Soliciting public comments for not less than 30 days during scoping for environmental assessments and environmental impact statements; and
(3) Soliciting public comments for not less than 60 days on draft environmental impact statements.
In addition, Subsection (b)(2) states: “In the case of an action with effects of national concern, notice shall include publication in the Federal Register [FR].” In general, there are confusing requirements as to when a FR notice of intent (NOI) and notice of availability (NOA) are required. Does the “national concern” criteria suggest that if something isn’t of national concern, the action doesn’t need a FR notice? In our experience, the FR notice establishes formal beginning of the scoping and public review processes.
In Subsection (b)(3), regarding an action with effects primarily of local concern, there is a long list of options for giving “notice” to agencies, Tribes, the general public, etc. However, it is not clear what kind of “notice” this section is referring to. Is it a FR notice or some other type of public notice?
CEQ’s regulations must be clear when FR notices are required for NOI and NOA for both draft and final EISs, RODs, EAs, etc. Other means of notifying agencies and the public are acceptable, as long as it is clear that these other type of notices do not replace the requirements for FR notices. Also, CEQ must clarify that, especially for EAs and EISs, public notice shall be required at the initiation of the NEPA process. To address these concerns, we request the following wording be added:
A notice in the Federal Register is required for the notice of intent and notice of availability for the draft and final environmental impact statement and for publication of the record of decision. In addition to the Federal Register notices, the agency may choose other methods of communication with the public including . . .
4. 1506.7 Further guidance (FR p. 1725)
The preamble states that, to date, CEQ has provided dozens of guidance documents on the existing regulations. We suggest that CEQ disclose in the proposed revised regulations what, if any, of these guidance documents will be carried forward or revised, and the time frame for their revision should the proposed regulations become final. We also suggest that the revised guidance documents be issued prior to agencies attempting to revise their own NEPA procedures.
5. § 1506.8 Proposals for legislation (FR pp. 1725-26)
In general, we support CEQ’s proposal to consolidate and revise for clarity the requirements for legislative EISs that are currently described in 40 CFR § 1508.17 and the definition of “legislation” found in § 1508.17. While there is some rewording proposed of the current regulations, the legislative EIS requirements, in general, appear to remain mostly intact.
However, our larger concern is the question CEQ raises in Preamble Section H. Proposed Revisions to Part 1506 (FR p. 1705) about whether the legislative EIS requirements should be eliminated or simply modified in the “updates.” We understand that the NEPA implementing regulations generally apply only to “Federal Agencies” (as defined in§1508.12 of the current regulations), and do not apply to Congress, the Judiciary, or the President. And, as described in the Preamble, the proposed rule would NOT apply to President-initiated legislative proposals, because it would be “inconsistent with the Recommendations Clause of the U.S. Constitution (Art. II, Section 3).” CEQ’s discussion in the Preamble seems to suggest that the President would be exempt from ALL NEPA requirements in EVERY situation involving legislative proposals that s/he initiates. If this is CEQ’s intent, to establish an absolute exclusion for all legislation in which the President plays an active role in introducing, it seems like regulatory overreach on the part of CEQ for the following reasons:
First, Article II Section 3 of the Constitution (cited by CEQ) also states that the President “shall take care that the Laws be faithfully executed.” According to Constitutional scholars, “the Faithful Execution Clause is commonly known as the Take Care Clause. The Take Care Clause is arguably a major source of presidential power because it seemingly invests the office with broad enforcement authority. Yet, at the same time, the provision also serves as a major limitation on that power because it underscores that the executive is under a duty to faithfully execute the laws of Congress and not disregard them[7](emphasis added).
Obviously, NEPA is one of the Nation’s most important environmental laws and therefore the President is obligated under the Take Care Clause to “faithfully execute the law of Congress and not disregard it.” The plain language in NEPA Section 101 of “Congress’s Declaration of National Policy” makes it clear that the law, in general, applies to the ENTIRE “Federal Government” (which would include the President as chief executive), not just to “agencies of the Federal Government.” For example, §101[42 USC § 4331] (a) of NEPA states, in part: “…it is the continuing policy of the Federal Government… to use all practicable means and measures… to create and maintain conditions under which man and nature can exist in productive harmony.” Section 101 [42 USC § 4331] (b) states, in part: “In order to carry out the policy set forth in this Act, it is the continuing responsibility of the Federal Government to… fulfill the responsibilities of each generation as trustee of the environment for succeeding generations; … attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences; …preserve important historic, cultural, and natural aspects of our national heritage, and maintain, wherever possible, an environment which supports diversity, and variety of individual choice; [and] achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life’s amenities[.]” It is not until Section 102 (regarding “Cooperation of agencies; reports; availability of information; recommendations; international and national coordination of efforts”) that Congress limits the application of the provisions to “agencies of the Federal Government.
Second, as a practical matter it is difficult to imagine a Presidential legislative proposal involving major infrastructure improvements that does not require the involvement of one or more Federal agencies to plan and implement the proposed federal action. It does not make sense to exempt by regulation such actions from NEPA simply because a President submitted the proposal to Congress (in effect on behalf of the agency). This approach would establish a harmful precedent that the Federal Government can essentially avoid NEPA compliance on any or all projects “proposed” by the President, which is fundamentally in conflict with the intent, if not the letter, of the law. We strongly urge CEQ to eliminate language in this section that implies the President’s proposals are (always) exempt from NEPA.
Lastly, CEQ seems to overlook the practical purpose and benefit of a legislative EIS. When prepared as part of a legislative proposal, the EIS informs Congress of potential environmental impacts of any major legislation that requires Congress to act. If legislative EISs were eliminated, Congress and the American public would be blind to any potential positive or negative environmental impacts. And, if the impacts were harmful, without the necessary impact analysis those harms might not be recognized until well after the legislation has already been enacted into law.
Because NEPA was originally enacted as a means for the Federal Government to measure the impacts of major federal actions prior to acting, we strongly support keeping the legislative EIS requirements as generally constituted in the revised § 1506.8.
6. § 1506.9 Proposals for regulations (FR p. 1726)
As written, this section indicates that for a major Federal action involving the promulgation of a rule or regulation, the agency must conduct an analyses of environmental issues that “may serve as the functional equivalent of the EIS and be sufficient to comply with NEPA.” In our view, this provision for an “equivalent analysis” to an EIS will lead to litigation on many proposed rules. The standards for an “equivalent analysis” must include provisions for public notice and inviting public comment, as well as a thorough analysis of effects on the human environment. Given the wording underlined above, we must ask: Where is CEQ’s environmental analysis of the impacts of this proposed rule? And when will the public have the opportunity to comment on that analysis?
7. § 1506.13 Effective date (FR p. 1727)
This section states, in part: “An agency may apply these regulations to ongoing activities and environmental documents begun before [EFFECTIVE DATE OF FINAL RULE]. This statement is confusing. Applying the proposed rule, once finalized, to ongoing activities and environmental documents already completed under the existing regulations would cause massive confusion regarding public understanding of which rules were followed and how the new final rule could retroactively affect ongoing decision and documents. The wording of this section also suggests that agencies may (or could) still apply the regulations that are/were in effect prior to issuance of the final rule. To address this concern, we request the section quoted above be re-worded to state:
An agency may apply the final regulations to ongoing activities and environmental documents begun (add) but not completed before [EFFECTIVE DATE OF FINAL RULE]. Agencies shall provide a clear and concise explanation in such environmental documents of how the final rule was applied to these ongoing activities.
PART 1507—AGENCY COMPLIANCE (FR pp. 1727-1728)
1. § 1507.2 Agency capability to comply. All agencies shall be capable (in terms of personnel and other resources) of complying with the requirements of NEPA and the regulations in parts 1500 through 1508. (FR p. 1727)
This requirement has substantial budgetary and procedural implications. The additional personnel and resources needed to comply with the potential final rule, such as the accelerated planning time frames, are substantial, given ongoing budget shortfalls and hiring freezes. While it is commendable that CEQ is insisting that agencies provide the “personnel and other resources” needed to comply, securing and committing the funding to do that on a sustained basis is likely beyond the control of most federal agencies. While CEQ seems to think the new rule will save agencies time and money, CEQ has provided no cost or human resources information or analysis to justify this conclusion. Because of the rule’s compressed time frames for completing NEPA documents, agencies may actually need additional resources (staff, hiring contractors in lieu of staff, etc.) in order to have the “capability to comply.”
Subsection (d) Study, develop, and describe alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources. This requirement of section 102(2)(E) of NEPA extends to all such proposals, not just the more limited scope of section 102(2)(C)(iii) of NEPA where the discussion of alternatives is confined to impact statements. (FR p. 1727)
This section seems to imply that development of alternatives need only be done for EISs, yet previous sections also require EAs to consider, disclose, and analyze alternatives. We recommend that the requirement to “study, develop, and describe alternatives” applies to ALL documents prepared to comply with the NEPA process. We suggest the following wording:
The requirement of section 102(2)(E) of NEPA extends to all such proposals contained in an environmental assessment or environmental impact statement.
2. § 1507.3 Agency NEPA procedures. (FR p. 1727-28)
Several portions of subsection (a) are of great concern to us. First is the stipulation in (a) that “within 12 months after publication of the final rule in the Federal Register (or 9 months after the establishment of an agency, whichever comes later), each agency shall develop or revise, as necessary, proposed procedures to implement the regulations in parts 1500 through 1508, including to eliminate any inconsistencies with these regulations” (emphasis added to underlined sections).
The 12-month requirement to revise/update agency-specific NEPA regulations or procedures is simply NOT realistic. For example, consider the Department of the Interior (DOI) and the various agencies and bureaus within the department. Before any agency or bureau (e.g., NPS, BLM, etc.) can revise its specific NEPA guidance, DOI must first revise its department-wide NEPA regulations through the rulemaking process, which could easily take a year or more by itself. Subordinate to DOI’s current NEPA regulations, the NPS NEPA Handbook[8] (i.e., its agency-specific NEPA guidance) was issued in 2015 and took nearly ten years to complete. Presumably, revising the NPS NEPA Handbook again, if needed, would take less time than before. However, the fact remains that DOI would need to revise its NEPA regulations through rulemaking before NPS could reasonably revise its guidance accordingly. To address our concern about the unrealistic 12 month time limit, we suggest the following wording:
NEPA procedures and policies shall be revised first at the departmental level, followed by appropriate revisions of agency or bureau specific procedures and policies.
Second, and most troubling, is the last sentence of subsection (a) which states: “Except as otherwise provided by law or for agency efficiency, agency NEPA procedures shall not impose additional procedures or requirements beyond those set forth in these [CEQ] regulations” (emphasis added).
Obviously, development of NPS-specific procedures must accommodate provisions of the NPS Organic Act. As a result, NPS’s NEPA guidance may appropriately need to be more specific and, in some cases more rigorous, that the general regulations proposed by CEQ. For example, to satisfy the “conservation mandate” of the NPS Organic Act, the agency’s NEPA decision documents (i.e., FONSIs and RODs) must include a formal “non-impairment determination.” (See NPS Guidance for Non-Impairment Determinations and the NEPA Process[9]). In order to document that a proposed action will not cause impairment of park resources may require additional time, pages, science, and public involvement to comply with the Organic Act.
In addition, NPS Director’s Order 75A[10] (DO-75A) sets forth the philosophy of the NPS with respect to public involvement, which is to “do more than meet the minimum legal requirements for public involvement in our decisions and activities” and commits the NPS to seek public input into discretionary decision-making (DO-75A, I). As a result, it is standard practice for NPS to allow a public review period of 30 days for EAs and 60 days for EISs. (See NPS NEPA Handbook p. 66).
Because NPS standards for public involvement are well established and have come to be widely expected by the public, we are very concerned that CEQ’s proposed rule would apparently REQUIRE all agencies to comply only with CEQ’s extremely vague and, frankly, deficient guidance regarding public involvement. CEQ states only that agencies “shall make diligent efforts to involve the public” without saying what that means in practical terms. (See§ 1506.6). We shudder to think that under CEQ’s flawed proposal no federal agency will be able to establish reasonable and appropriate minimum standards for the length of public comment periods on EAs and EISs. To address this concern, we request that the last sentence of subsection (a) be struck and replaced with the following:
Agencies may impose additional requirements within the NEPA process to comply with their establishment acts and other pertinent laws, policies, and mandates.
Subsection (a)(5) requires that “the alternatives considered by the decision maker be encompassed by the range of alternativesdiscussed in the relevant environmental documents and that the decision maker consider the alternatives described in the environmental impact statement.”
The above statement is awkwardly worded (i.e., not plain English) and, as a result, confusing. As written, it seems to imply that the decision maker only needs to consider a range of alternatives in an EIS, but not in an EA, which is nonsense and will inevitably lead to litigation. A reasonable range of alternatives should always be included in NEPA documents (i.e., EAs and EISs) unless there are absolutely no feasible options other than the proposed action. In our experience, such as situation is very rare and can be adequately explained in the document. To address this concern, we request that the statement quoted above be struck and replaced by the following language:
The decision maker shall consider a range of alternatives in both environmental assessments and environmental impact statements. Limiting the scope of NEPA documents to only consider no action and the proposed action shall be rare and only after documentation that other alternatives are not feasible.
Subsection (d)(2)(ii) proposes “[s]pecific criteria for and identification of those typical classes of action…[w]hich normally do not require either an environmental impact statement or an environmental assessment and do not have a significant effect on the human environment (categorical exclusions (§ 1501.4)). Any procedures under this section shall provide for extraordinary circumstances in which a normally excluded action may have a significant environmental effect.”
As worded, the underlined sections imply that each agency can develop its own list of “extraordinary circumstances.”
As discussed elsewhere in our comments, the lack of definition and vagueness of CEQ’s guidance has lead and will lead to varying interpretations and broad inconsistency in what constitutes “extraordinary circumstances” across the spectrum of federal agencies. At a minimum, the CEQ regulations should include a standard (i.e., mandatory) list of generally accepted “extraordinary circumstances” that each federal agency can add to in its agency-specific guidance based on its statutory mandates. See our comments above (for § 1501.4), which describe extraordinary circumstances that should be specified in the rule.
PART 1508—DEFINITIONS (FR pp. 1728-1730)
(d) Categorical exclusion means a category of actions which the agency has determined in its agency NEPA procedures (§ 1507.3) normally do not have a significant effect on the human environment (FR p. 1728)
CEQ’s proposed guidance on categorical exclusions (see §1501.4) uses the term “extraordinary circumstances” several times, yet CEQ provides no definition of that term. As discussed in our detailed comments for §1501.4, CEQ regulations should include a standard (i.e., mandatory) list of generally accepted “extraordinary circumstances” that federal agencies must consider along with any additional “extraordinary circumstances” that they include in their agency-specific NEPA guidance (e.g., such a factors related to their respective statutory mandates). We also suggest that CEQ add the following definition of “extraordinary circumstances” to §1508:
Extraordinary circumstances means those factors or circumstances that help a Federal agency identify situations or environmental settings that may require otherwise categorically-excludable action to be further analyzed in an environmental assessment or an environmental impact statement. These include circumstances listed in § 1501.4(b)(1) and any additional ones which the agency has determined in its agency NEPA procedures (§ 1507.3).
2. (g) Effects or impacts means effects of the proposed action or alternatives that are reasonably foreseeable and have a reasonably close causal relationship to the proposed action or alternatives. Effects include reasonably foreseeable effects that occur at the same time and place and may include reasonably foreseeable effects that are later in time or farther removed in distance. (FR pp. 1728-29)
(1) Effects include…
(2) A “but for” causal relationship is insufficient to make an agency responsible for a particular effect under NEPA. Effects should not be considered significant if they are remote in time, geographically remote, or the product of a lengthy causal chain. Effects do not include effects that the agency has no ability to prevent due to its limited statutory authority or would occur regardless of the proposed action. Analysis of cumulative effects is not required.
The proposed rule completely removes the concepts of “cumulative” and “indirect” effects from the NEPA regulations. The proposed exclusion of these key terms will have two major consequences for future NEPA reviews: (1) cumulative and indirect effects will no longer be used to determine the threshold of significance, and (2) such effects will no longer be analyzed in EAs or EISs. This will make impact analyses more superficial and less forward thinking.
As noted above, cumulative impact analysis was part of not just the 1978 regulations but also the 1971 CEQ Guidelines and the 1973 CEQ Guidelines. Removal of this key term is contrary to the statute, which requires analysis of cumulative impacts. See Hanly v. Kleindienst, 471 F.2d 823 (2d Cir. 1972). The Court in Hanly interpreted the phrase “significantly” to include the “cumulative harm that results from [the action’s] contribution to existing adverse conditions or uses in the affected area.” The Court further explained that “in the absence of any Congressional or administrative interpretation of the term,” the term requires an agency to “review the proposed action in light of at least . . . the absolute quantitative adverse environmental effects of the action itself, including the cumulative harm that results from its contribution to existing adverse conditions or uses in the affected area.”
Removal of the requirement to consider cumulative and indirect impacts is also contrary to Sections 102(2)(A) and 102(1) of NEPA. Section 102(2)(A) requires that agencies “utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decision-making which may have an impact on man’s environment.” Section 102(1) requires agencies to administer federal laws in accordance with the policies in Section 101 of NEPA, which include “trusteeship of the environment for succeeding generations.” It is not possible to comply with these requirements without consideration of the cumulative and indirect impacts of the action.
The statement regarding a “but for causal relationship is insufficient to make an agency responsible” is not clear and based on CEQ’s misstatement of the holding in DOT v. Public Citizen, 541 U.S. 752 (2004). Public Citizen simply held that an agency did not have to consider environmental effects that were the result of presidential action instead of agency action. Public Citizen did not hold that NEPA does not require an agency to consider the foreseeable and significant impacts of its action just because it does not have the authority to prevent the impacts. That would be contrary to Section 102(2)(C) of NEPA that requires informing the decisionmaker and meeting the goals of Section 101 of NEPA.
4. (i) Environmental document means an environmental assessment, environmental impact statement, finding of no significant impact, or notice of intent. (FR p. 1729)
We request that the words “categorical exclusions for which a record is required” be included in the definition. Written CEs are, in fact, environmental documents.
5. (cc) Scope consists of the range of actions, alternatives, and impacts to be considered in an environmental impact statement. (FR p. 1730)
We request that the words “environmental assessment or” be inserted into the definition as follows: “… to be considered in an … (add) environmental assessment or …environmental impact statement.” Scoping is a critical factor in the preparation of EAs, not just EISs.
6. (dd) Senior agency official means an official of assistant secretary rank or higher, or equivalent, that is designated for agency NEPA compliance, including resolving implementation issues and representing the agency analysis of the effects of agency actions on the human environment in agency decision-making processes. (emphasis added) (FR p. 1730).
As discussed in our previous comments wherever this term is used in the proposed rule, for many federal agencies a “senior agency official of assistant secretary rank or higher” would likely be a political appointee at the departmental level, rather than a career professional with expertise and line authority for the implementation of the NEPA process. Vesting political appointees with these decisions inherently subjugates “good policy” and sound decision-making to whatever the Administration in power perceives as “good politics” to satisfy whatever special interest groups or industries happen to be in favor. Such NEPA process decisions should be made at the agency or bureau level, not at the department level. To address this concern, we request that CEQ revise the definition of “senior agency official” to mean:
…an official within an agency or bureau of regional manager rank or higher, or equivalent, that has line authority for agency NEPA compliance, including resolving implementation issues and representing the agency analysis of the effects of agency actions on the human environment in agency decision-making processes.
7. The following definitions of commonly used NEPA terms are NOT included in the proposed rule and should be added to § 1508:
Cumulative impact means the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (federal or non-federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time.
Direct effects means those impacts caused by the action that occur at the same time and place as the action.
Indirect effects means those impacts, which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable. Indirect effects may include induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems.
Segmentation means a proposal has been broken down into small parts in order to avoid the appearance of significance of the total action in an attempt to justify preparation of a less rigorous level of NEPA compliance. In order to avoid the appearance of segmentation, the scope of a proposal must include the consideration of connected and cumulative actions.
Significance as used in NEPA requires considerations of both context and intensity:
(a) Context means that the significance of an action must be analyzed in several contexts such as society as a whole (human, national), the affected region, the affected interests, and the locality. Significance varies with the setting of the proposed action. For instance, in the case of a site-specific action, significance would usually depend upon the effects in the locale rather than in the world as a whole. Both short- and long-term effects are relevant.
(b) Intensity refers to the severity of impact. Responsible officials must bear in mind that more than one agency may make decisions about partial aspects of a major action. The following should be considered in evaluating intensity:
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- Impacts that may be both beneficial and adverse. A significant effect may exist even if the agency believes that on balance the effect will be beneficial.
- The degree to which the proposed action affects public health or safety.
- Unique characteristics of the geographic area such as proximity to historic or cultural resources, units of the national park system, designated wilderness areas, prime farmlands, wetlands, wild and scenic rivers, or ecologically critical areas.
- The degree to which the effects on the quality of the human environment are likely to be highly controversial.
- The degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks.
- The degree to which the action may establish a precedent for future actions with significant effects or represents a decision in principle about a future consideration.
- Whether the action is related to other actions with individually insignificant but cumulatively significant impacts. Significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment. Significance cannot be avoided by terming an action temporary or by breaking it down into small component parts.
- The degree to which the action may adversely affect districts, sites, highways, structures, or objects listed in or eligible for listing in the National Register of Historic Places or may cause loss or destruction of significant scientific, cultural, or historical resources.
- The degree to which the action may adversely affect an endangered or threatened species or its habitat that has been determined to be critical under the Endangered Species Act of 1973.
- Whether the action threatens a violation of Federal, State, or local law or requirements imposed for the protection of the environment.
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CLOSING COMMENT
The purpose of NEPA “to promote efforts [among federal agencies] which will prevent or eliminate damage to the environment and biosphere” sets a very high bar for evaluating the propriety and potential effects of CEQ’s proposed changes to its NEPA implementing regulations. The existing NEPA regulations (which we view as “no action”) are well-established and have evolved over decades in response to litigation. In contrast, the changes in those procedures described in the proposed rule have numerous significant and, as yet, untested shortcomings. As a result, it is inevitable that the new regulations, if finalized without significant revisions, will be challenged through litigation on multiple fronts. Implementation of the new rule will likely be held up in the courts for years to come.
To avoid this, we strongly encourage CEQ to look beyond the perceived financial benefits that the proposed “streamlining” of the NEPA process would provide to industries that build major infrastructure projects, and give serious consideration to the many substantive concerns expressed by agencies, Tribes, organizations, and the general public. As we have read in the “Comments” posted about the proposed rule on regulations.gov,[11] many non-commercial commenters have expressed substantive concerns that the proposed rule will illegally and unnecessarily limit the scope of, and substantially reduce the quality of, NEPA analyses prepared by the respective federal agencies. Other common concerns expressed thus far relate to unreasonable proposed standards (such as presumptive page and time limits for NEPA documents); and the obvious move to reduce opportunities for public participation in the NEPA process.
Many substantive changes are needed to make the proposed rule at least as effective at accomplishing NEPA’s goal of “preventing or eliminating damage to the environment” as the current CEQ regulations. Because of this, we strongly recommend that CEQ incorporate many of the changes suggested by commenters; then issue a revised proposed rule for additional comment prior to finalizing the regulations. This would contribute to public confidence in a final rule that not only improves efficiency, but is also effective at protecting the environment. For CEQ to do anything less would be a great disservice to the purpose and principles of NEPA (the Act) itself, one of the Nation’s most important laws.
We greatly appreciate the opportunity to comment on this important issue.
Sincerely,
Philip A. Francis, Jr., Chair
Coalition to Protect America’s National Parks
cc:
David Vela, Acting Director, National Park Service
Ray Sauvajot, Associate Director, Natural Resource Stewardship and Science, NPS
Patrick Walsh, Chief, Environmental Quality Division, National Park Service
[1]http://vjel.vermontlaw.edu/legislative-history-national-park-services-conservation-non-impairment-mandate/
[2]https://defenders.org/sites/default/files/2019-06/win-win_the_endangered_species_act_and_our_national_parks.pdf
[3]https://www.nps.gov/subjects/wilderness/wilderness-parks.htm
[4]https://www.nps.gov/aboutus/upload/NPIndex2012-2016.pdf
[5]https://fas.org/sgp/crs/misc/R43868.pdf
[6]https://www.federalregister.gov/documents/2010/12/06/2010-30017/final-guidance-for-federal-departments-and-agencies-on-establishing-applying-and-revising
[7]https://constitutioncenter.org/interactive-constitution/interpretation/article-ii/clauses/348
[8] https://www.nps.gov/subjects/nepa/upload/NPS_NEPAHandbook_Final_508.pdf
[9] https://www.nps.gov/subjects/nepa/upload/Supplemental-Guidance_Non-Impairment-Determination-2011_accessible.pdf
[10] https://www.nps.gov/policy/DOrders/75A.htm
[11] https://www.regulations.gov/document?D=CEQ-2019-0003-0001